Officer Involved Use of Deadly Force in Manchester, New Hampshire on May 7, 2011

I. Introduction

New Hampshire Attorney General Michael A. Delaney announces that the Attorney General's Office has made a determination that the officer-involved shooting in Manchester, New Hampshire on May 7, 2011, which resulted in the death of James D. Breton, was a legally justified use of deadly force by the State Trooper who shot and killed Mr. Breton.

Mr. Breton's entire course of conduct from Thursday, May 5, 2011 through the morning of Saturday, May 7, 2011, created a situation where Trooper Ditolla reasonably believed that he, one of the other troopers in their vehicle and/or Mr. Breton's seven year old daughter, were in danger of death or serious bodily injury at the moment Trooper Ditolla fired at Breton. That course of conduct included the fact that Mr. Breton had produced a firearm when he first encountered police officers on May 5, 2011, that he refused to leave his home, that he refused to let his daughter go, that he made numerous threatening statements, that he had admitted committing sexual assaults, that he was determined not to go to prison for his crimes, and that he behaved aggressively when the troopers inserted a mirror pole into the apartment. Given that information known to Trooper Ditolla, it was reasonable for him to conclude that Mr. Breton intended to shoot at him or other troopers in his vicinity after he heard the sound of what he believed to be Breton shooting at him or the other troopers. As a result, Trooper Ditolla responded by shooting Mr. Breton.

The fact that Trooper Ditolla mistook the sound he heard for gunfire from Mr. Breton was reasonable under the totality of the circumstances. The objective reasonableness of that belief is illustrated by the fact that several other troopers who were present during the incident also believed that Mr. Breton had fired his gun at them during the encounter.

Accordingly, the Trooper's actions are justified under the law in spite of the fact that he was mistaken in his belief that Mr. Breton had fired a gun at the troopers. Under New Hampshire law an honest but mistaken belief that a person presents an imminent threat of deadly force justifies using deadly force as long as the mistaken belief was reasonable under the circumstances.

II. Facts

A. Summary of the Facts

On May 5, 2011, a nineteen year old woman reported to the Manchester Police Department that her mother's boyfriend had sexually molested and then raped her for several years. This woman reported that the sexual assaults occurred from the time she was twelve years old until she was eighteen years old. The victim identified the man who had assaulted her as James D. Breton, age 50, of 298 Main Street, Apt. #1, in Manchester, New Hampshire. The victim told the police that Mr. Breton had a black handgun and said that if the police showed up to arrest him he would not go alive but would leave in a body bag. She also told the police that her seven year old sister, J.B., also lived in the apartment with Mr. Breton.

As a result of what they had learned from the victim, the Manchester Police Department sent several officers to Mr. Breton's apartment to speak to him and to check on his seven year old daughter. When they arrived at around 5:00 p.m., the officers asked to speak to Mr. Breton, but he refused. Mr. Breton told the police he did not want them to enter his apartment and then turned and walked away. One of the officers told Mr. Breton to stop and in response, Breton turned around towards the officers holding a gun at his side. He then aggressively stepped toward the officers and shouted: "I'm not going anywhere! Get the fuck out of my house!" At that point, the officers left and sought cover while calling for additional backup and the SWAT Team.

Eventually, members of the Manchester Police Department SWAT Team were deployed and secured the area around the Mr. Breton's apartment. They were later joined by members of the New Hampshire State Police SWAT Team.

Negotiators with the Manchester Police Department and the State Police made numerous attempts to convince Mr. Breton to leave his apartment and surrender, but he refused these requests. Mr. Breton also refused to let his daughter J.B. leave the apartment or let the officers in to check on her well being.

During the standoff, Mr. Breton's mood was up and down. At times he displayed great anger and hostility. He cried hysterically and then returned to being calm. He also tried to manipulate the police by being equivocal about his intentions of ending the standoff. Mr. Breton also told the negotiators that he had, in fact, sexually assaulted his girlfriend's older daughter. As a result, he said that he knew that he would have to go to prison for life if he came out of the apartment. He made a number of statements indicating that he was not going to give up and come out alive and that the police would have to shoot him. Mr. Breton said that he would force the police to kill him. About two hours before the shooting incident on Saturday morning, May 7, 2011, Mr. Breton said that he would break his apartment's windows, shoot off rounds from his gun at the officers, and keep his daughter close in front of him to use her as a human shield. Mr. Breton also asked the police if they would shoot through his daughter to get to him.

On Saturday, May 7, 2011, at approximately 6:29 a.m., members of the New Hampshire State Police SWAT Team relieved the Manchester Police Department SWAT Team. At this point, the standoff had been going on for about thirty seven hours. Seven State Troopers were deployed at the rear of the building in an armored vehicle called a "B.E.A.R." Those troopers were Trooper Gerard Ditolla, Trooper Mark Hall, Trooper Chad Lavoie, Sergeant Kevin Macaione, Sgt. Nate Noyes, Sgt. Chris Vetter, and Sgt. Chris Wagner. The B.E.A.R. vehicle they were in was positioned at the rear of the apartment building within about an arms length of Mr. Breton's kitchen windows.

At 6:31 a.m., State Police Negotiator Trooper Joe Ebert spoke briefly with Mr. Breton on a telephone call until Breton hung up on him. Trooper Ebert called Mr. Breton back numerous times but Mr. Breton either refused to answer the telephone call or answered and then hung up. At about 6:39 a.m., it appeared that Mr. Breton had turned off his phone, which was the first time he had done that in the course of the standoff. At approximately, 6:40 a.m., the SWAT team members inserted a mirror on the end of a pole into the kitchen window of Mr. Breton's apartment in an attempt to get a better look at the barricades he had erected inside. As that happened, Mr. Breton grabbed the end of the pole and a struggle ensued between him and the troopers in the B.E.A.R., as Breton attempted to pull the pole into his apartment. Mr. Breton managed to pull the mirror off the end of the pole and then slammed it down in front of him. As he did that, his actions created a noise which Trooper Gerard Ditolla and other troopers mistook for gunfire. Mr. Breton's actions also caused debris to be ejected out of his kitchen window which was consistent with him firing a gun. Trooper Ditolla saw Mr. Breton move behind the refrigerator and then quickly step out and "square up" to the window in an aggressive manner, like he was getting ready to take some sort of action. At that point, Trooper Ditolla knew that Mr. Breton had been armed at the start of the standoff and believed that Mr. Breton had fired a gun at them. Based on the belief that Mr. Breton had just shot at them, Trooper Ditolla shot at Mr. Breton to stop him from shooting at the troopers again.

At about 6:41 a.m., someone called out on the radio, "Shots fired!" Trooper Ditolla stated that he had fired his rifle at Mr. Breton. A short time later, SWAT Team members removed Mr. Breton's daughter, J.B. from the house uninjured. As they did that, SWAT Team members observed Mr. Breton lying face down on the floor. Since they could not see Mr. Breton's hands or his gun and he did not respond to their commands, a SWAT Team member fired two TASER rounds at Mr. Breton to immobilize him. After that, they approached Mr. Breton, handcuffed him and confirmed that he had been shot. Mr. Breton was removed from the apartment so he could be treated by emergency medical personnel who were on scene. He was then transported to the Catholic Medical Center, where he was later pronounced dead.

The scene at Mr. Breton's apartment was secured and in accordance with established protocol, a member of the New Hampshire Attorney General's Office, with the assistance of the New Hampshire State Police Major Crime Unit, led an investigation into the shooting incident. That investigation involved viewing the scene of the incident, reviewing photographs, examining physical evidence, reviewing police reports, reviewing witness interviews, and conducting witness interviews. Throughout the process, all police officers directly and indirectly involved in the incident were completely cooperative with the investigation and complied with all the investigators' requests.

B. Manchester Police Officers

The reports from the Manchester police officers who were involved in the initial events that led to this incident were reviewed. In addition, interviews were also conducted with some of those officers.

Officer Patrick Maguire

On Thursday afternoon, May 5, 2011, Manchester Police Officer Patrick Maguire spoke to B.S., a nineteen year old female. B.S. told Officer Maguire that her mother's boyfriend, James D. Breton, had begun sexually molesting her when she was living with him and her mother, Laura. B.S. said that she was twelve years old when Mr. Breton began molesting her. The assaults continued for years and eventually Mr. Breton had sexual intercourse with B.S. from around the time she was sixteen years old until she was eighteen years old. B.S. told Officer Maguire that she was scared of Mr. Breton and that he would sometimes hit her.

B.S. said that Mr. Breton told her not to say anything about the sexual assaults because if the police showed up to arrest him, "he would not go alive but would leave in a body bag." B.S. also expressed concern about her seven year old sister J.B., who was with Mr. Breton.

This information was conveyed to detectives who decided to go speak to Mr. Breton that day and check on the welfare of the seven year old girl who was with him.

Detective Peter Kucharski

On Thursday afternoon, May 5, 2011, Manchester Police Detective Peter Kucharski was assigned to follow up on the sexual assault allegations against Mr. Breton. As part of the investigation, he called the victim and asked her about any weapons Mr. Breton had. She told Det. Kucharski that she was not sure if Mr. Breton had a gun but she had seen one in the apartment at some point. After that call, Det. Kucharski and three other police officers went to Mr. Breton's apartment at 298 Main Street in Manchester in order to follow up on the sexual assault allegations and to ensure the safety of the seven year old girl who was reported to be with Mr. Breton. Two officers made contact with Mr. Breton at the rear of the apartment. Then, Det. Kucharski and another officer moved up and spoke to Mr. Breton. Det. Kucharski asked Mr. Breton if he could speak with him and Mr. Breton responded by saying, "My daughter is in the bathtub. I don't want to talk to you right now." Det. Kucharski did not directly tell Mr. Breton about the sexual assault allegations the police were investigating but asked Breton questions about the victim which likely conveyed the nature of the investigation to Breton. Mr. Breton was very agitated and indicated that he did not want the police to enter. Mr. Breton turned and began walking through the kitchen area of the apartment. Due to officer safety concerns, Det. Kucharski followed Mr. Breton and instructed him to stop. Mr. Breton then quickly turned around holding a handgun by his side. Mr. Breton aggressively moved toward Det. Kucharski and another police officer while holding the handgun. Mr. Breton shouted, "I'm not going anywhere! Get the fuck out of my house!" The Manchester officers moved to the adjacent alley and sought cover. They also called to report the incident to headquarters and requested backup including the SWAT Team.

C. Police Negotiators

In addition to reviewing the notes and log kept by the negotiators from the Manchester Police Department and the State Police, the lead negotiators were also interviewed as part of this investigation.

Manchester Police Sergeant Carlo Capano

Detective/Sergeant Carlo Capano has been employed by the Manchester Police Department for fifteen years. He has been a SWAT Team Negotiator since approximately 2009. He has extensive experience in interviewing suspects and witnesses in a variety of cases and circumstances, including serious felony cases and murder cases.

Sergeant Capano was notified about the incident involving Mr. Breton at about 7:00 p.m. on May 5, 2011. Sergeant Capano oversaw the negotiations with Mr. Breton while Manchester's SWAT Team was on scene on May 5, 6 and 7th. On May 5, 2011, he and a team of negotiators from the Manchester Police Department went to the scene at 298 Main Street, Apt. 1, in Manchester. Once there, they set up a command post in their crime scene van and received a briefing on the situation, including details of what had transpired as well as background information about Mr. Breton. Amongst other things, Sergeant Capano was told that Mr. Breton had confronted officers with a firearm when they went to speak to him regarding sexual assault allegations, the officers backed off and a standoff had ensued with Mr. Breton inside, armed with a gun. His seven year old daughter was also inside.

In order to try to engage Mr. Breton in a dialogue, numerous attempts were made to reach him by phone. Eventually, the Manchester Police SWAT Team managed to get cell phones to Mr. Breton, which he used to talk to the negotiators. Sergeant Capano oversaw and was present for all the conversations and negotiations with Mr. Breton while the Manchester SWAT Team was on scene.

Sergeant Capano described Mr. Breton as displaying tremendous mood swings throughout police negotiations with him. He was often very agitated during the phone calls with the negotiators, including screaming and swearing at them. At other times, Mr. Breton cried hysterically and then would be calm and appear to try to manipulate the negotiators. During their conversations with Mr. Breton, he admitted to sexually assaulting his girlfriend's older daughter. He also attempted to justify his actions by blaming what had occurred on the victim.

Throughout the standoff, Mr. Breton refused to let the police speak to his seven year old daughter or to release her. He continuously reminded the negotiators that "this is about me, not her." Mr. Breton told the police that he knew that if he released his daughter the police would come inside and get him. Mr. Breton did not want that to happen because he told the negotiators that he was not stupid and knew that if he came out, he would be going to prison for life because of the sexual assaults he had committed. He was also convinced that the police had a warrant for him on the sexual assault charges and were there to arrest him and he did not want to go to prison.

Mr. Breton also made statements which caused the negotiators to be concerned that Breton may have sexually assaulted or might sexually assault J.B. during the standoff. They were also concerned that given his statements and state of mind, they could be facing a situation where Mr. Breton would decide to kill his daughter and then himself. Those concerns as well as information about Mr. Breton's family dynamics, led to the decision not to agree to his demands to speak to his mother or his girlfriend Laura. Instead, an attempt was made to let Mr. Breton speak to his brother, but Mr. Breton eventually rejected that idea.

On Saturday morning, May 7, 2011, Mr. Breton made more aggressive statements toward the police. At around 5 a.m., he told the negotiators that he would shoot at officers out the windows and hold his seven year old daughter in front of him as a shield. Mr. Breton asked the negotiators what they would do if he did that and if they would shoot through his daughter to get to him. The negotiator told Mr. Breton they would never do that and that they did not want anybody to get hurt. After more conversation about this subject, Mr. Breton said that he was just "talking out of his ass." He said he needed more time and hung up the phone. Sergeant Capano characterized that exchange with Mr. Breton as serious. Mr. Breton did not appear to be joking or kidding around when he made the statements about shooting out his windows and using his daughter as a shield. At about 6:30 a.m., the Manchester team switched with the State Police team, briefing them on Mr. Breton's statements. The scene and the negotiations were then handed over to the State Police. The shooting incident took place not long after that hand-off occurred.

State Police Trooper Joe Ebert

Trooper Joe Ebert has been employed by the State Police since 2002 and part of the Negotiation Unit since 2004. He has received numerous trainings in negotiation and has an undergraduate and graduate degree in psychology.

Trooper Ebert arrived in Manchester on scene early in the morning on Friday, May 6, 2011. His purpose was to relieve the Manchester Police Department negotiators in order to give them some rest.

Once he arrived, Trooper Ebert was given details of what had transpired as well as background information about Mr. Breton. Amongst other things, Trooper Ebert was told that Mr. Breton had confronted officers with a firearm when they went to speak to him regarding sexual assault allegations. The officers backed off and a standoff had ensued with Mr. Breton inside, armed with a gun. His seven year old daughter was also inside.

Trooper Ebert spent a total of approximately six to seven hours on the phone with Mr. Breton during the day on Friday. Trooper Ebert found Mr. Breton to be highly agitated with up and down mood swings. Mr. Breton admitted that he had sexually assaulted the victim who had gone to the police, but placed the blame for what he had done on the victim, not himself. Mr. Breton told Trooper Ebert explicit details about the sexual assaults he had committed. Breton also said that he knew that he would be going to prison for thirty years if he came out of the house and that he would die in prison. He admitted that his young daughter J.B. knew about what he had done (i.e., the sexual assaults) to her older sister. Mr. Breton also said that he knew that as long as he had his daughter in the house with him the SWAT team would not enter the house to get him. He told Trooper Ebert that he was not coming out of the house and his daughter was not coming out either.

Mr. Breton also made many statements indicating that he would not be taken alive. He told Trooper Ebert that he should tell them (i.e., the SWAT team) to shoot him. He said that he would force them (the SWAT team) to kill him. He also said, that: "You're going to end up having to kill me."

Mr. Breton said that he would never hurt J.B. who was in the house with him. However, Trooper Ebert was concerned for J.B. because Mr. Breton seemed more focused on his own welfare than his daughter's. Mr. Breton also made statements that made Trooper Ebert concerned that Breton may have sexually assaulted or might sexually assault J.B. during the standoff.

During the standoff, Mr. Breton said he wanted to talk to his mother whom he had not spoken to in seven years and his girlfriend, Laura, whom he believed had gone to the police about the sexual assaults he had committed against her daughter. However, the decision was made not to let him speak to his mother or his girlfriend since he had indicated that he was very angry with both of them and it would not likely advance the negotiations. In addition, based on Trooper Ebert's experience and training, letting Mr. Breton speak to people he was close to and angry with could be a prelude to a final violent act, such as a suicide. As an alternative, it was suggested to Mr. Breton that they bring in his brother to speak to him. That was suggested because unlike his mother and girlfriend, Mr. Breton indicated that he liked his brother, did not appear angry with him, and had been close to him. Once the idea was discussed further and Mr. Breton was told the police could get his brother there to talk to him, Mr. Breton suddenly changed his mind and said he did not want to talk to his brother after all.

Trooper Ebert tried to negotiate with Mr. Breton to get him to agree to release his daughter and surrender, but Mr. Breton refused all of those offers and attempts. Eventually, Trooper Ebert needed to transfer the negotiations back to the Manchester police negotiator. He did that around 6:00 p.m., on Friday, May 6, 2011, after briefing the Manchester negotiators on what had occurred during his time speaking with Mr. Breton. After that, Trooper Ebert left the scene and returned home for the night.

Trooper Ebert arrived back in Manchester early on Saturday morning, May 7, 2011. Once there, he learned that Mr. Breton had not spoken much overnight but when he did he had been very agitated. Trooper Ebert also learned that no one had heard from seven year old J.B. for some time. In addition, at around 5:00 a.m., Mr. Breton had told the Manchester negotiator that he would break his apartment's windows, shoot off rounds from his gun, and then keep his daughter close in front of him and use her as a shield.

Trooper Ebert took over negotiations again at about 6:29 a.m. At about 6:31 a.m., Trooper Ebert spoke briefly with Mr. Breton before Breton hung up on him. During that call, Mr. Breton was highly agitated. Trooper Ebert called Mr. Breton back numerous times but Mr. Breton either refused to answer or answered and then hung up. At about 6:39 a.m., Mr. Breton appeared to turn off his phone, which was the first time he had done that in the course of the standoff. That caused Trooper Ebert to be concerned as it appeared to Trooper Ebert that Mr. Breton had no intent on coming out of the house alive.

After Mr. Breton cut off communications, the decision was made to move Trooper Ebert to the B.E.A.R. vehicle to try to contact Mr. Breton over the public address system. Before that could happen, Trooper Ebert heard an announcement that shots had been fired. A short time later, SWAT Team members removed J.B. unharmed from the house and confirmed that Mr. Breton had been shot by a member of the State Police SWAT Team.

D. State Police SWAT Team Members in the B.E.A.R. Vehicle

Many members of the State Police SWAT Team were interviewed during the course of this investigation. The interviews with the seven troopers who were directly involved in the shooting incident and who were inside the B.E.A.R. vehicle are summarized below.

Trooper Gerard Ditolla

Trooper Gerard Ditolla was interviewed as part of the investigation. He has been a New Hampshire State Trooper for approximately six years. Prior to that, Trooper Ditolla received a bachelor's degree in criminal justice from Norwich University and also served in the United States Marine Corps reserves. While in the Marines, Trooper Ditolla spent three years serving in the infantry and three years in a Scout Sniper platoon. As part of his service with the Marine Corps, Trooper Ditolla was deployed to the Philippines in 2003 and to Iraq in 2006. He has been a member of the State Police SWAT Team for about one and a half years.

Trooper Ditolla learned of the incident involving Mr. Breton on Thursday, May 5, 2011. He overheard radio traffic about the incident and also spoke to State Police Sergeant Nate Noyes who confirmed that the Manchester SWAT Team had been activated. Sergeant Noyes told Trooper Ditolla that a barricaded subject was holding a hostage in his home in Manchester. He also learned that a young woman had reported to Manchester PD that she had been sexually assaulted by the subject in the house and that he was the father of her child. This woman also said that there was a 7 year old girl in the house. After Manchester PD was informed of these allegations, officers went to check on the 7 year old girl. When the officers arrived, the subject did not want them to check on the girl and brandished a firearm. The Manchester officers left and then called SWAT. Trooper Ditolla was given all this information by Sgt. Noyes and told to be on standby as the Manchester Police Department might want the State Police to assist them in the incident.

The next day on Friday, May 6, 2011, Trooper Ditolla was notified to report to Manchester as the State Police SWAT Team had been activated. He picked up the B.E.A.R. vehicle and drove it to the scene in Manchester. Later on, he received a briefing and learned that Mr. Breton had been up and down emotionally during the negotiation process with Manchester. He also learned that Mr. Breton had been noncompliant, was suicidal, was not going to let the girl go, and was armed. He was also told that negotiations with Mr. Breton were "hit or miss;" Breton would sometimes be talkative and other times would get very angry.

After the briefing, Trooper Ditolla was assigned with other SWAT Team members to cover the rear of Mr. Breton's apartment building. The blinds were drawn on all the windows at the rear of the building making it impossible to see activity inside the apartment. The B.E.A.R. vehicle was parked parallel to the rear of the building, alongside the kitchen windows.

While Trooper Ditolla was deployed in the rear of the building, he was given updates regarding the negotiations with Mr. Breton. He was told that Breton sometimes talked on the phone and was somewhat understanding and cooperative, and other times was completely the opposite.

Trooper Ditolla had to leave the scene at around 9:00 a.m. on that Friday to complete another assignment and then returned to the scene at approximately 12:30 or 1:00 p.m. When he returned, he learned that Mr. Breton was still armed and would not come out of the apartment or let his daughter go. Trooper Ditolla took up a position at the rear of the building at the B.E.A.R. vehicle, which was parked very close to the building. While there, Trooper Ditolla was responsible for covering a first floor window and door at the left rear corner of the building. Trooper Ditolla learned that Mr. Breton did not want to let his daughter go and was suicidal. He also learned on either that day or the next day that Breton had made statements about using his daughter as a shield. Trooper Ditolla remained at the scene until 6:00 p.m., when the State Police SWAT Team was relieved by the Manchester SWAT Team. A debriefing was held and then Trooper Ditolla left the scene and returned home.

On Saturday, May 7, 2011, at approximately 5:30 a.m., Trooper Ditolla returned to the scene in Manchester. Once there, he received a briefing and learned that Mr. Breton had made comments that he was suicidal, would use his daughter as a shield, had said that he would shoot the place up or fire rounds, had barricaded the kitchen door, and may have possibly boarded up some windows. Trooper Ditolla was also told that Breton was noncompliant and negotiations had fallen through. Manchester SWAT Team members had broken out a window in the back of the building and exposed the kitchen area in order to gain a better view into the house. Concern was expressed because Mr. Breton's daughter's voice had not been heard in the house since Friday and they were worried about what had happened to her and what Mr. Breton may have done to her. Given the circumstances and Mr. Breton's statements some officers, including Trooper Ditolla, were also concerned about a possible murder-suicide situation.

Given the heightened concerns about Mr. Breton, the decision was made to try and gain a better view into the house by using a mirror on the end of an expandable pole. The mirror pole was inserted through an open gun port in the B.E.A.R. into an open window in the kitchen area at the rear of the home. At the time this was done, the sun was just starting to come up, but it was still fairly dark in the kitchen area of the house.

Trooper Ditolla's task was to cover the window of the kitchen with his firearm to provide protection for the men in the B.E.A.R. while the mirror was inserted into and used to see around in the kitchen. This "cover" was needed because the gun port of the B.E.A.R. would be open and adjacent to the open window in the kitchen, exposing the troopers inside to potential gunfire from Mr. Breton.

Trooper Ditolla took a position standing on the ground at the rear of the B.E.A.R. behind an open door. As he stood at the door with his rifle, Trooper Ditolla had a limited field of view into the kitchen. That field of view did allow him to see a refrigerator in the kitchen.

As the troopers in the B.E.A.R. were using the mirror, Trooper Ditolla could hear and feel some sort of struggle taking place. He could not see the struggle but could feel the vehicle move as the struggle ensued between the trooper holding the mirror pole in the B.E.A.R. and the person on the other side of the apartment's kitchen window. To Trooper Ditolla, it sounded like the mirror was getting banged around inside and then he heard a loud bang, which Trooper Ditolla perceived to be a gunshot. At that point, he could feel and kind of see out of the corner of his eye that the troopers in the B.E.A.R. on the passenger side of the vehicle, the side closest to the building, quickly backed up and moved to the other side of the vehicle, away from the kitchen window. Trooper Ditolla said that a split second after he heard what he believed to be a gunshot, he saw Mr. Breton quickly move away from the window and take up a position behind the refrigerator. When Trooper Ditolla saw Mr. Breton hide behind the refrigerator, he assumed that Breton did that because he had just done something wrong.

At that point, Trooper Ditolla was thinking that Mr. Breton just had some sort of violent altercation with the troopers in the B.E.A.R. Trooper Ditolla said that he knew that Mr. Breton was in very close proximity to the gun port on the B.E.A.R., which was open and exposed the troopers in the B.E.A.R. to gunfire. He also knew that he was the only trooper who had a rifle trained on the window area where Mr. Breton was and that his responsibility was to protect the troopers exposed behind the open gun port in the B.E.A.R.

From his perspective and due to the lighting, Trooper Ditolla could only see Mr. Breton from the belly button up and could not see if he was armed or not. However, Trooper Ditolla said that to him, a gunshot clearly had been fired and there was no doubt in his mind that the shot had been fired by someone in the kitchen.

After seeing Mr. Breton move quickly behind the refrigerator, Trooper Ditolla saw him quickly step out and "square up" to the window in an aggressive manner, like he was getting ready to take some sort of action. Trooper Ditolla did not believe that Mr. Breton was retreating from the kitchen and categorized Breton's movements as "aggressive." At that point, Trooper Ditolla said it was clear he had to stop Mr. Breton from harming the troopers and so he fired at him. He believed he fired two or three times into the center of Mr. Breton's chest and then Breton quickly fell out of his view. After firing those shots, he announced that he had fired to the other troopers in the B.E.A.R. According to Trooper Ditolla, only a few seconds passed from the time the struggle began with the mirror pole to when he heard the gunshot and then fired at Mr. Breton.

Trooper Ditolla stated that he fired his rifle to stop Mr. Breton from harming the troopers who were exposed to potential gunfire behind the open gun port in the B.E.A.R. In addition, Trooper Ditolla said he had no idea where the young girl was in proximity to where Mr. Breton was located. As a result, Trooper Ditolla stated that he fired at Mr. Breton to protect the other troopers and the little girl from what he clearly perceived to be deadly force, or as he also put it, "violent, aggressive action" on Mr. Breton's part. Trooper Ditolla further explained his actions in firing at Mr. Breton by stating that he knew that Breton was armed and that he had heard the "gunshot." As a result, Trooper Ditolla said it would have been very easy for Mr. Breton to shoot into the B.E.A.R., through the open gun port and "engage" (i.e., shoot) the other troopers inside. Trooper Ditolla stated that he believed that Mr. Breton had already fired once at the troopers and that he wanted to stop Breton from doing that again. Trooper Ditolla was also concerned for his safety when he fired his rifle since he was partially exposed at the rear of the B.E.A.R., which meant that he could have been shot by Mr. Breton from the kitchen.

After firing at Mr. Breton, Trooper Ditolla heard a young girl screaming, "Help me, help me!" Several troopers, including Trooper Ditolla left the B.E.A.R. to remove the little girl from the apartment. When they arrived at the door to the kitchen, they found that it was barricaded on the other side by a washing machine or a dryer. The glass window in that door was gone which allowed one of the other troopers to reach in and scoop up the little girl and remove her from the apartment. Trooper Ditolla could see Mr. Breton on the kitchen floor. The troopers could not see Mr. Breton's hands and did not know if he still had a gun on him and so there was concern that Mr. Breton would attempt to shoot or harm the troopers. Other troopers gave Mr. Breton verbal commands with which he did not comply. Shotgun Taser rounds were fired by another trooper at Mr. Breton and then eventually, the troopers squeezed through the doorway into the kitchen. A trooper went up and handcuffed Mr. Breton while Trooper Ditolla and other troopers checked the rest of the apartment. As Trooper Ditolla went through the apartment, he could see signs of barricading in the apartment. After that, Trooper Ditolla was told to sit in the B.E.A.R. and not discuss anything with anyone and wait to be contacted about what had occurred. He complied with those orders.

Sergeant Chris Vetter

Sergeant Chris Vetter has been a State Trooper since 1996 and a member of the SWAT Team since 2000. He was inside the B.E.A.R. vehicle during the shooting incident. As he inserted the mirror pole into Mr. Breton's kitchen through the open window, he heard Trooper Lavoie say, "There he is, he's got a Patriot's jacket on. He's coming." Sgt. Vetter dropped down and still held onto the pole. As he did that, he heard either Trooper Lavoie or Trooper Hall say, "He's got the mirror." After that, it was a tug of war and then the mirror came off the end of the pole. As he pulled the pole back into the B.E.A.R., Sgt. Vetter heard a loud "pop" from outside the B.E.A.R. He though that Mr. Breton was shooting at them when he heard that noise and then heard a trooper say, "He's shooting at us!" Next, Sgt. Vetter heard what he believed to be three gunshots. The three gunshots quickly followed the sound which he thought was gunfire from Mr. Breton. Sgt. Vetter heard Trooper Gerard Ditolla say, "I fired." After that, Sgt. Vetter could not longer see Mr. Breton standing in the kitchen.

Trooper Chad Lavoie

Trooper Chad Lavoie has been with the State Police since 2005 and on the SWAT Team since late 2006 or early 2007. He was inside the B.E.A.R. vehicle during the shooting incident. As the mirror pole was inserted into the open kitchen window, Trooper Lavoie saw Mr. Breton walk into the kitchen. When Mr. Breton appeared, Trooper Lavoie said, "He's coming towards the window." Mr. Breton moved quickly and appeared agitated. Trooper Lavoie saw Mr. Breton grab the mirror and try to pull it off the end of the pole. Trooper Lavoie held onto the pole with Sgt. Vetter and tried to pull the pole back into the B.E.A.R. Mr. Breton pulled the mirror off the pole, threw the mirror and then backed up out of Trooper Lavoie's view. The whole time he could see Mr. Breton, Trooper Lavoie only saw the right side of Breton's body. Trooper Lavoie saw debris coming out of the kitchen window as if from a gunshot and then heard what appeared to him to be a gunshot coming from the kitchen area. Based on that, he believed that Mr. Breton was firing a gun at them. Very quickly afterwards he heard two to three gunshots coming from one of the SWAT Team weapons.

Trooper Mark Hall

Trooper Mark Hall has been with the State Police since 1999 and on the SWAT Team since 2005. He was inside the B.E.A.R. vehicle during the shooting incident. As the mirror pole was inserted into Mr. Breton's kitchen through an open window, he heard another trooper say, "There he is." Then there was a "commotion" as a tug of war ensued between the trooper holding the pole in the B.E.A.R. and the person holding the other end in the apartment kitchen. Trooper Hall then heard someone say, "He's grabbing the end of the camera," as the struggle over the pole continued. The next thing Trooper Hall heard was a loud "crack." He was not sure if the sound was a gunshot. Trooper Hall then heard someone say something about him (Mr. Breton) breaking the end off the pole. Seconds later Trooper Hall heard three gunshots. He described hearing the sound of the "crack" and the firing of the three shots as being close together in time.

Sergeant Kevin A. Macaione

Sergeant Kevin A. Macaione has been with the State Police since 2002 and on the SWAT Team since 2004. He was inside the B.E.A.R. vehicle during the shooting incident. As the mirror pole was inserted into Mr. Breton's kitchen through an open window, he heard another trooper say that Breton was in the kitchen and grabbing the mirror. He then saw the trooper holding the mirror pole engaged in a tug of war with the person on the other end in the kitchen. As that happened, the B.E.A.R. was parked close to the back of the apartment with the gun port open and the troopers inside exposed. Sgt. Macaione then heard a little girl say, "Help me, I'm scared." The next thing Sgt. Macaione heard was a "crack" sound and then he saw debris come off of the kitchen window sill and spray out towards the B.E.A.R. vehicle. At that moment, Sgt. Macaione believed that Mr. Breton had fired a gun at them from inside the kitchen and so he yelled to the others, "He's shooting at us, he's shooting at us!" After that, he heard what he believed to be three shots being fired from one of the SWAT Team member's rifles. Afterward, Sgt. Macaione heard Trooper Gerard Ditolla say, "I fired, I fired."

Sergeant Chris Wagner

Sergeant Chris Wagner has been with the SWAT Team for eleven years. He was inside the B.E.A.R. vehicle during the shooting incident. His task was to drive the B.E.A.R. and so he was located at the far end of the vehicle at the time of the incident. During the incident, he observed Sgt. Vetter insert a mirror pole out of a gun port on the B.E.A.R. into the kitchen window. Sgt. Wagner heard Sgt. Vetter suddenly announce, "He's got a hold of the mirror." At that point, Sgt. Wagner got on the PA (public announcement/loudspeaker) system and started speaking over it to Mr. Breton. He told Mr. Breton to calm down and told him that they were not there to hurt him. He also told Breton that they didn't want anyone to get hurt and not to do anything stupid. After that, Sgt. Wagner heard what he believed to be gunshots coming from Mr. Breton. Sgt. Wagner announced that shots were being fired at the B.E.A.R. Shortly after that, Sgt. Wagner left the B.E.A.R. to assist entering the apartment.

Sergeant Nate Noyes

Sergeant Nate Noyes has been with the SWAT Team for seven and one half years. He was inside the B.E.A.R. vehicle during the shooting incident. As the mirror pole was inserted into the apartment, he heard Trooper Lavoie say, "Here he comes, he's wearing a Patriots sweatshirt." Sgt. Noyes looked up and saw Mr. Breton appear quickly in the kitchen window. The mirror pole started to shake and Sgt. Noyes saw Sgt. Vetter struggling to hold onto the mirror pole. Then, Sgt. Noyes saw Mr. Breton pull the mirror off the end of the pole, take the mirror and slam it down in front of him. That created two loud cracking noises and caused dust and debris to pop up from the bottom of the window. Sgt. Noyes could also see a reflection off of the mirror. After that, he heard approximately three cracks which he believed to be gunshots. Someone to Sgt. Noyes's right then said, "He's shooting at us, he's shooting at us." Sgt. Noyes moved to the back of the B.E.A.R. and Trooper Gerard Ditolla told Sgt. Noyes that he fired his rifle.

E. State Police SWAT Team Members not in the B.E.A.R.

There were several State Police SWAT Team members deployed around Mr. Breton's apartment building at the time of the shooting incident. Those troopers completed reports and some of their relevant observations are summarized below.

Trooper David Appleby

Trooper Appleby is a sniper with the State Police SWAT Team. On May 7, 2011, he was stationed in a third floor of an apartment building at the rear of Mr. Breton's apartment building. At around 6:30 a.m., Trooper Appleby saw State Police SWAT Team Members in the B.E.A.R. vehicle place a mirror though a window in the apartment building. He saw a tug of war ensure between someone inside the apartment and someone inside the B.E.A.R. He heard a trooper announce over the radio that the suspect was pulling on the mirror. Moments later, Trooper Appleby saw the mirror being pulled out of the window and then he heard a crash and a distinct "snap," which he thought could be a gunshot. After hearing that noise which he though to be a gunshot, Trooper Appleby also saw debris burst out from the apartment's window towards the B.E.A.R. vehicle. Very shortly afterwards, he saw Trooper Gerard Ditolla shoot into the apartment window as he heard over the radio, "Shots fired, shots fired."

Trooper Appleby said that the incident all happened within a few seconds.

Trooper Michael F. Commerford

Trooper Commerford was a State Police SWAT Team Member who was stationed near the front corner of the apartment building on May 7, 2011. Sometime after 6 a.m. that morning, he was made aware that that other members of the SWAT Team were attempting to put a mirror into the opened kitchen window at the back of the building in order to view the barricades inside. Shortly afterward, he heard yelling coming from within the residence which sounded like "get that thing out of here." Someone said over the radio that Mr. Breton was grabbing the mirror and then Trooper Commerford heard wrestling going on inside the apartment as well as Mr. Breton yelling. The next thing Trooper Commerford heard was "two pops" coming from within the apartment and then three consecutive pops.

Sergeant D.W. Hinkell

Sergeant Hinkell was a State Police SWAT Team Member who was stationed on the porch at another building located in back of Mr. Breton's apartment. He could see the side of the B.E.A.R. vehicle which was parked alongside Mr. Breton's kitchen windows. Sergeant Hinkell did not see any of the actions involved here, but he did hear some of the incident. Specifically, on the morning of May 7, 2011, he heard a trooper announce over the radio that the male subject had grabbed the mirror which has been inserted in side the kitchen window. Then he heard the shuffling of some feet, some unintelligible words, and a "pop" sound which was followed by at least two gunshots. After that, Sgt. Hinkell heard someone announce over the radio, "Shots fired, shots fired!"

F. Laura Gardner and her seven year old daughter

Laura Gardner

Laura Gardner spoke to the Manchester police on May 26, 2011. During that interview she provided information about her family and James Breton.

Laura told the police that Breton has been depressed for some time and she first saw Breton with a firearm about a month and a half before the incident during one of his "episodes where he was very depressed." During that episode, Breton had the gun out and told Laura that she was better off dead. Around that same time frame Breton pointed the gun at Laura and told her that she needed to be killed. Laura said she never reported the incidents to the police because she knew that something would occur like a standoff with the police.

Laura also discussed the sexual assault allegations against James Breton. Laura said that her older daughter told her about the allegations, as did Breton. Laura said that Breton admitted to her that the sexual assault allegations were true.

Seven year old female – J.B.

Laura Gardner and James Breton's daughter, J.B., was interviewed at the Hillsborough County Child Advocacy Center. She is seven years old. J.B. informed the interviewer that her father, James Breton, did not assault her during the standoff and she did not witness her father being shot. Nothing else of relevance to the shooting incident was learned as a result of the interview.

G. Physical Evidence and Autopsy Results

The evidence recovered from inside Mr. Breton's apartment included a .22 caliber semi-automatic handgun, which was found loaded with eight bullets in Mr. Breton's pants pocket. There is no evidence that Mr. Breton fired his handgun during the standoff or fired it immediately prior to being shot. The mirror Mr. Breton tore off the end of the mirror pole was also recovered intact in the kitchen.

Spent cartridge casings consistent with Trooper Dittola's .223 caliber rifle were recovered from the scene. Preliminary analysis indicates that Trooper Ditolla likely fired two or three shots at Mr. Breton, striking him once.

The State's Deputy Chief Medical Examiner, Dr. Jennie V. Duval, conducted an autopsy on Mr. Breton and determined that his cause of death was a single gunshot wound to the chest and his manner of death was homicide.

III. The Applicable Law And Legal Standards

New Hampshire's laws regarding self defense, defense of others and the use of physical force by law enforcement are set forth in RSA Chapter 627. Under RSA 627:5, II (a), a law enforcement officer is justified in using deadly force when he reasonably believes that such force is necessary to defend himself or a third person from what he reasonably believes is the imminent use of deadly force. The phrase "reasonably believes" means that the actor "need not have been confronted with actual deadly peril, as long as he could reasonably believe the danger to be real." State v. Gorham, 120 N.H. 162, 163-64 (1980).

The term "reasonable" "is determined by an objective standard." State v. Leaf, 137 N.H. 97, 99 (1993). All the circumstances surrounding the incident should be considered. See id. at 99; Aldrich v. Wright, 53 N.H. 398 (1873). Therefore, the use of deadly force may be justified even if the actor was not confronted with actual deadly force as long as the actor's belief was still "reasonable" under all the facts and circumstances.

The law does not require that a police officer must actually be attacked or threatened with a deadly weapon before he or she uses deadly force. There is generally recognized to be no "per se rule…that a police officer may never employ deadly force unless attacked by a suspect possessing a deadly weapon…." Davis v. Southern Pennsylvania Transportation Authority, et al., 2001 WL 1632142 *6 (E.D. Pa. 2001); see also Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001) (an officer is not required to wait until he sets eyes on the weapon before employing deadly force to protect himself against a suspect); Karnes v. Winston, 27 F.3d 1002, 1007 (4th Cir. 1994) ("we do not think it wise to require a police officer, in all instances, to actually detect the presence of an object in a suspect's hands before firing on him."). Instead, "so long as…[the officer's] mistaken belief was objectively reasonable, his use of deadly force was also objectively reasonable…." Id.

When examining the actor's conduct in using deadly force, that conduct should be viewed "under the circumstances as they were presented to him at the time, and not necessarily as they appear upon detached reflection." N.H. Criminal Jury Instructions, 3.10. In other words, the inquiry must focus on the situation from a reasonable person's standpoint who was in the same setting as the actor and who had the same knowledge of the situation he had at the time. The examination is not made with hindsight which is afforded by one viewing the circumstances after the fact.

In Graham v. Connor, 490 U.S. 386 (1989), the Unites States Supreme Court discussed the standards by which a police officer's conduct would be judged when excessive force claims were brought against him. The Court confirmed that "the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions were 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 396.

The Court went on to explain how to determine what is "reasonable" in situations faced by police officers: "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id. at 396-97.

As another Court put it, determining what is "reasonable" in situations faced by police officers requires the following analysis:

[U]nder Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face everyday. What constitutes "reasonable" action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.

Smith v. Freeland, 954 F.2d 343, 347 (6th Cir. 1992).

Finally, when the State analyzes a police officer's use of deadly force, the State bears the burden of disproving a claim of self defense or defense of another, beyond a reasonable doubt. See State v. McMinn, 141 N.H. 636, 645 (1997). The burden is not on the person who used deadly force to prove that their conduct met the requirements of the law or was reasonable.

IV. Conclusion

The evidence and investigation reveals that on May 5, 2011, Manchester police officers learned that James D. Breton had sexually assaulted his girlfriend's older daughter B.S. When the police arrived to speak to him and confirm his seven year old daughter's safety, Mr. Breton confronted the officers while armed with a handgun and ordered them out of his home. From that point on, Mr. Breton had a firearm and was unwilling to leave his home or let his daughter go. He also admitted to police negotiators that he had, in fact, sexually assaulted his girlfriend's older daughter and did not want to go to prison for his crimes. Mr. Breton told the police that he would force them to kill him. He also said: "You're going to end up having to kill me."

As the standoff progressed, Mr. Breton took steps to fortify his apartment and make it more difficult and potentially dangerous for the police to enter. He erected barricades at his doors and concealed his activities from the police by closing the window blinds/shades. Those actions also prevented the officers from confirming the location and condition of Mr. Breton's seven year old daughter. Finally, at no time during the incident did Mr. Breton surrender his gun or let his daughter leave the house.

Throughout the incident, Trooper Ditolla was made aware of much of the background regarding Mr. Breton, as indicated earlier in this report. While Trooper Ditolla provided cover for other troopers inserting a mirror pole into the kitchen window, Mr. Breton grabbed the pole and attempted to pull it away. Trooper Ditolla heard a loud noise that he believed to be a gunshot from the kitchen. He saw Mr. Breton quickly go behind the refrigerator and then step out in an aggressive manner. Trooper Ditolla decided it was necessary to fire at Mr. Breton in order to protect the other troopers and the child from what he perceived to be the imminent use of deadly force by Mr. Breton.

The fact that Trooper Ditolla mistook the sound he heard for gunfire from Mr. Breton was reasonable under the totality of the circumstances. The objective reasonableness of that belief is illustrated by the fact that several other troopers who were present during the incident also believed that Mr. Breton had fired his gun at them during the encounter.

Based on all the facts and circumstances known to Trooper Ditolla at the time and examining the situation from the standpoint of an objective police officer in Trooper Ditolla's position, it was reasonable for Trooper Ditolla to conclude that Mr. Breton had fired his gun at him or the other troopers and was about to use deadly force when Trooper Ditolla shot him. Therefore, Trooper Ditolla was legally justified in using deadly force against Mr. Breton.